Ari Ezra Waldman | Federal Prop 8 Trial | Gay Marriage | Law - Gay, LGBT | News | Proposition 8 | Supreme Court | Ted Olson

Proposition 8 at the Supreme Court: Analysis of Today's Argument, Part 2


In Part II of Towleroad's summary and analysis of the Prop 8 oral argument, we pick up with Ted Olson's argument against Prop 8. Read Part One HERE.

And listen to audio and read the full transcript HERE.

OlsonHere's what we have discussed so far:

  • The justices are definitely interested in the standing question. The Chief Justice, though playing a gate-keeper role to make sure standing gets addressed, expressed skepticism. The key will be to see if he is playing the devil's advocate or expresses skepticism with Mr. Olson, too. But, in addition to the Chief Justice, Justice Ginsburg is highly skeptical. If we see more evidence of this below, look for lack of standing to be the odds-on favorite of many pundits. But, remember, there were lots of other questions on the merits from all the justices. That does not mean that they are going to pass by standing. Nor does it preclude a 9-0 opinion saying the Proponents had no standing.

  • Mr. Cooper was forced to admit that the only injury caused by allowing gays to marry would be redefining marriage, which is clearly not an injury whatsoever. He also admitted that gays simply do not advance the government's interest in encouraging natural procreation within wedlock (even though he's wrong about that), which proves that a ban on gays marrying cannot actually advance that interest, either. If it weren't for some help from Justice Scalia, this case would be over on this point alone.

  • Justice Kennedy showed that he, like many, are struggling with this issue. The addition of this relatively emotional admission (emotional, at least, by Supreme Court argument standards) is telling of his honesty and the reality that many people are going through right now. This may suggest that Justice Kennedy is going through his process, perhaps with a little help from everyone else along the way.

We pick up with Ted Olson's argument and see what lessons we can draw,

Ted Olson, the lead attorney challenging Prop 8, fared better.

J_robertsMr. Olson got a bit further into his opening remarks before being interrupted by Chief Justice Roberts about standing. So, here, we already see that a given question or a tendency to interrupt does not foreshadow anything. However, I will say that both times the Chief Justice asked a standing question, it was tilted toward showing skepticism: to Mr. Cooper, he asked how Proponents are any different than random citizens, who never have standing; to Mr. Olson, he asked how Proponents could ever have standing when the State of California declined to appeal at all. Neither attorney said anything new or that wasn't in the briefs. I would color the Chief Justice skeptical on standing. But, don't color the entire Court in the same shade. Justice Kennedy jumped in first with a few questions critical of Mr. Olson's no-standing view and repeated the argument from the California Supreme Court: without the right to defend the initiative, the right to "propose and enact" an intiative or referendum is meaningless. Justice Alito was there with him with a follow up. Justice Sotomayor was also worried about what happens when state officials simply don't like a law and stop defending it; "how do you get the law defended in that situation?" Mr. Olson had no answer, but returned to his talking points on direct injury.

Justice Sotomayor's questioning is a perfect example of why we cannot read too much into the tea leaves of oral argument. She asked pointed, sharp standing questions to each attorney: demanding a clear statement of injury from Mr. Cooper (which he could not provide) and a clear answer on state nullification from Mr. Olson (which he couldn't provide, either).

When he moved to the merits, Mr. Olson's next move was a breath of fresh air. He turned to the broadest argument we can make for a national right to marry: that any ban on gays marrying violates due process. While this shouldn't surprise us -- this argument was not only front-and-center in his brief, but also invited by the Court when it crafted its broad Questions Presented -- it reminded me of the great potential of this case and Mr. Olson's confidence in his position.

As expected, the argument drew forceful responses: a nuanced one from the Chief Justice and an angry, bitter one from Justice Scalia. The Chief Justice made the point that bans on gays marrying need not only be seen as antigay discrimination. It is undisputed that marriage as an institution developed without gays; keeping it that way is not necessarily discrimination. Aside from ignoring pre-Christian "unions" in Greece and Rome and focusing only on the development of marriage in a Judeo-Christian tradition, what the Chief Justice misses with that argument is the discriminatory and silencing role of the closet. Countless institutions developed without gay people because gays were shoved underground and forced to hide in order to survive. Plus, that a practice has always existed does not mean it isn't discriminatory.

A_scaliaJustice Scalia glommed on to that interesting -- but ultimately unsatisfying argument -- by demanding, in a tone typical of the archconservative justice, that Mr. Olson tell him "exactly when" it became unconstitutional to ban gays from marrying. After all, there was no gay marriage right in 1791 (the year we ratified the Bill of Rights).

Mr. Olson showed his confidence, experience, and his standing at the Court by doing something I tell my students and young attorneys never to do: answer a question with a question. His argument was amazing: If that's your concern, when did it become unconstitutional to ban interracial marriage? Justice Scalia got testy, demanding an answer. Mr. Olson said he couldn't point to a date, but that wasn't the point: No court requires that kind of precision. Mr. Olson could have gone further and argued that this kind of discrimination is always anathematic to American principles of liberty and equality; that it took a while for us to realize it is our fault, not a gay person's burden to bear.

What was happening here was Justice Scalia hyping his view that the Constitution is "dead, dead, dead," and was egging Mr. Olson to say that the Constitution should change as times and social mores change. Strategically, Mr. Olson declined to take the bait. Justice Scalia bloviated, "How am I supposed to decide a case then, if you can't give a date when the Constitution changes?"

It was almost as if Mr. Olson was not going to bother with such nonsense. He responded by noting that when the Court decided that separate-but-equal schools were unconstitutional in Brown v. Board of Education, for example, no one ever required something as ridiculous as a date the Constitution changed. And that's because the Constitution isn't changing. Just because society's conceptions of freedom and equality a century ago were not our conceptions of freedom and equality does not mean that the Constitution has to stand for the versions of freedom and equality that prevailed when we had slaves. But, there will be no persuading Justice Scalia on this point. In fact, he even admitted that he was demanding something unprecedented: "I know," he said, "I know." The Court has never required anything of the sort. "That's exactly the problem." It's clear that Justice Scalia wants to upend centuries of rights jurisprudence. There's very little rational argument can do about that now.

The Chief Justice and Justice Kennedy then asked questions about the "odd rationale" (Kennedy's words) the Ninth Circuit gave for rejecting Prop 8 -- namely, that by taking away a right already given, Prop 8 violated the principle of Romer v. Evans. To the Chief Justice, Mr. Olson reiterated his fundamental rights argument, but conceded that there were several, narrower ways the Court could decide the case. To Justice Kennedy, Mr. Olson declined to be overtly critical of a lower court opinion that came out on his side, but you could tell that Mr. Olson was positioning himself at the boundary and allowing the Court a lot of leeway to strike down Prop 8 without, as Justice Kennedy noted, going into uncharted waters and finding a cliff at the end of the line.

SotomayorIt was Justice Sotomayor who brought up the slippery slope argument about polygamy: If marriage is a fundamental right, Mr. Olson, can we ever have legitimate restrictions on it? Yes, he said. Prop 8 is part marriage restriction, part status discrimination; it targets gays as a class. A restriction on polygamy would target conduct, not a class of persons traditionally discriminated against. 

The take away from this is that having chosen to make the broadest argument about any ban on the freedom to marry violating due process, Mr. Olson had to spend more than half of his time at oral argument swatting down skeptical questions from both wings of the Court about the very breadth of his proposal. But, don't dismay. Posing the broad argument was likely a strategic decision that allows a more moderate approach to seem like a reasonable compromise. 

Don Verrilli, President Obama's Solicitor General, makes the President's "8 State Solution" Argument.

When a state like California grants gays the right to do everything, including Verrilliadopt children or have a family through a surrogate, then Mr. Cooper's argument that the state's interest in heterosexual couples' procreative ability has no "legs." Several justices noted the irony of the '8 State Solution' -- it says that the most pro-gay states are violating the rights of gays, but it leaves out the states that don't allow gays any rights. Mr. Verrilli answered that question by agreeing with my argument that the 8 State Solution was inherently illogical as a matter of law: It's not just the pro-gay states; the anti-gay states will also have trouble justifying their bans on gays using the word "marriage." This case, however, is about a unique state.

Mr. Verrilli was the one who had to deal with the Chief Justice's and Justice Alito's suggestions that this was all moving too fast. Gay marriage is new, Justice Alito said, preventing us from actually seeing its effects. The Chief Justice's voice actually grew louder on the audio when he challenged the demand for a nationwide right to marry without letting the public debate continue to work it out.

To use a baseball analogy, it seems like Mr. Olson and Mr. Verrilli were playing different roles on a team. If it's the bottom of the ninth inning and you have a man on second and need one run to tie and two runs to win, Mr. Olson was trying to hit a "walk off" home run so the game would be over and everyone could go home. Mr. Verrilli was aiming to just get the runner home, setting up extra innings where some of his heavy-hitting teammates could end the game in a little while. Although Mr. Verrilli faced some questions about a broad holding, he was hitting back the justices' skepticism with viable alternative options.

Mr. Cooper gets another shot (a rebuttal), but Justice Ginsburg has his number.

Charles_cooperIn an extra-long 10 minute rebuttal (extended because the justices kept Mr. Olson up there a bit too long), Mr. Cooper tried to capitalize on several justices' concerns about a nation-wide right to marry by arguing that an anti-Prop 8 decision could never be narrowed to just California. Justice Ginsburg snapped back in only the way she can, with a lesson about how Loving v. Virginia ultimately came about after several, more limited decisions that paved the way for a national right. Mr. Cooper's only response was the procreative argument about which several conservative justices had already expressed skepticism: that the government has no interest in banning interracial marriage, but it does have an interest in banning gays from marriage because gay people cannot advance the govermental interest in encouraging responsible procreation. I think the 40,000 children of gay parents in California would disagree.

Perhaps the most remarkable thing about this hearing came at the end, where Mr. Cooper was the one who almost conceded that the freedom to marry is coming, sooner or later. His plea, his only plea, was for the Court to stay out of it. The Court need not even worry about Mssrs. Katami and Zarrillo or Ms. Stier and Ms. Perry because the freedom to marry "will be coming back to California." Ostensibly referring to public opinion polls, Mr. Cooper has the nerve to ask the Court to continue injuring even the plaintiffs (let alone the rest of California) because gay persons' marriages are things everyone should vote on. The justices did not have time to question this line of argument, but it strikes me as the height of Mr. Cooper's and his movement's dismissive heartlessness: these people don't need their rights guaranteed because eventually, my liberal kids are going to give them their rights.


For those willing to make predictions from oral argument alone, look at the following things we learned:

  • Several members of the Court are concerned about standing, asking questions skeptical of proponents' standing to both sides.

  • Justice Kennedy may have given us his version of "I'm evolving every day on this issue" when he said that this case is raising issues that he "has been struggling with." He is obviously keenly aware of his role as the so-called "swing" justice and does not want to tip his hat, but his words tap into the journey our entire country is taking together.

  • Mr. Cooper admitted the emptiness of his case and the lack of any real connection between Prop 8 and a state interest.

  • Some of the justices asked skeptical questions about a broad ruling, but that does not mean Prop 8 will survive. If anything, it means that Mr. Olson's strategy worked.

Hollingsworth may, therefore, end Prop 8, either on standing or the merits. Either way, everything about today's argument suggests that Mr. Cooper's conclusion is wrong. No one should have the right to vote on the legitimacy of my love. And no one has the right to hand me my rights like beneficences from a king. That is why the American Foundation for Equal Rights (AFER) and its attorneys, Ted Olson and David Boies, took us to the Supreme Court. Today, our lawyers made us proud by revealing the basic infermity of Prop 8: it singles out gays, discriminates against them, and it does so for no reason. 


Ari Ezra Waldman teaches at Brooklyn Law School and is concurrently getting his PhD at Columbia University in New York City. He is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. His research focuses on technology, privacy, speech, and gay rights. Ari will be writing weekly posts on law and various LGBT issues. You can follow him on Twitter at @ariezrawaldman.


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  1. Kennedy's "struggling with the issue." What there's to struggle with? They keep saying that there's NO DATA on gay marriage. Look to the NORTH people. We've had marriage equality in Canada since 2003; it was made law of the land in 2005. There's LOTS of data up here if you cared to look.

    What did we learn today? The procreation argument is bogus (we already knew that) and that allowing The Gays to marry would not harm heterosexual marriages (we already knew that). After all that we have to wait until JULY!!!

    Posted by: Gigi | Mar 26, 2013 3:31:56 PM

  2. I think Scalia was fishing for "'Lawrence' was the date when banning gay marriage was unconstitutional...just as you predicted o' wise one."

    Posted by: Gus | Mar 26, 2013 3:41:46 PM

  3. Actually, in reference to the "no data" question, one of the Justices mentioned Norway, where it's been legal since 2000. Essentially saying that 13 years doesn't offer enough data to overturn 2000 years of precedent.

    (I read the transcript)

    Posted by: Cal | Mar 26, 2013 3:44:24 PM

  4. I have to admit, this is looking very favourable for California. And, while I would love a strong smackdown with this ruling, a ruling that only invalidates prop8 would be a great step on the road for marriage equality.

    (Now, if only we could get it back on the political agenda on Australia!)

    Posted by: Stufromoz | Mar 26, 2013 3:46:59 PM

  5. I think its a mistake to read too much into the questioning. This issue was to be expected, and I think the questioning just sounds like they are trying to poke around to see whether they need to address the case at all. Its judicial restraint.

    Also, I have to wonder, going back to Lawrence or the Colorado cases, could you have predicted from any questioning in those cases, the outcome?

    Posted by: Factoid | Mar 26, 2013 3:49:14 PM

  6. It seems to me (although I can reason why Olson didn't do it) that the answer to Scalia's question about the precise date the Constitution changed would have been to quote back his dissent in Lawrence v. Texas where he said Lawrence v. Texas effectivly removed any basis for outlawing equal marriage.

    Posted by: TomTallis | Mar 26, 2013 3:50:50 PM

  7. How is gay marriage too "new" to see its effects? It's been nine years since Mass. became the first state to allow gay marriage and there has not been a single negative effect that can be shown.

    Posted by: Eddie | Mar 26, 2013 3:51:55 PM

  8. Oh it discriminates for a reason, just not one that is acceptable in a court of Constitutional Law. If we lived in Iran, it would be perfectly acceptable. The religious fanatics of America are going to find themselves on the fringe of the fringe of society if they cling to 3000 year old BS. We have more information available today than in any generation before us. Don't think that this generation will stand for myth and mysticism to rule them.

    Posted by: Mykelb | Mar 26, 2013 3:55:23 PM

  9. Once again, Ari Waldman's clear and concise analysis helps me understand complex legal issues. Thanks you for this and for all the great articles that you've posted on Towleroad.

    Posted by: Jimvh | Mar 26, 2013 3:59:30 PM

  10. Thank you, Ari. Your explanation is so clear and beautiful.

    Posted by: Larry | Mar 26, 2013 4:02:34 PM

  11. “But you want us to step in and render a decision based on an assessment of the effects of this institution which is newer than cell phones or the Internet?” One Justice's comment.

    Call the movers.

    Posted by: Reality | Mar 26, 2013 4:05:49 PM

  12. apparently the supremes are too ignorant to distinguish between good and bad social science research. scumbag scalia went out of his way to provide (veiled) endorsement of regnerus's bogus hit piece on same-sex parenting. that will supply nom with an effective sound bite. it's simply too soon to know so we shouldn't proceed. and kennedy's stupid remark on ssm leading either to a beautiful place or a cliff will also be used against us. i'm disgusted at these immoral imbeciles. being a supreme court justice doesn't exempt you from being an imbecile. remember both taney and plessy v. ferguson.

    i'd be interested in ari's view of the court's treatment of the social science research.

    Posted by: candide001 | Mar 26, 2013 4:07:31 PM

  13. “But you want us to step in and render a decision based on an assessment of the effects of this institution which is newer than cell phones or the Internet?” One Justice's comment.

    Posted by: GB | Mar 26, 2013 4:08:30 PM

  14. Candi: If it went your way, I doubt you'd be calling the Justices "imbeciles" The fat lady may sing in June.

    Posted by: Reality | Mar 26, 2013 4:12:55 PM

  15. reality; even if they sing in favor of ssm in june, anyone who says the social science evidence is unclear is an imbecile. supreme court justices are not above the law of being an imbecile.

    Posted by: candide001 | Mar 26, 2013 4:19:46 PM

  16. Keep in mind that the only way for conservatives to overturn the ruling of the ninth was to take the case. That is, they have to grant standing if the ninth is to be overturned. They could argue that there is no standing and that the ninth erred, but then the district court ruling would stand and that would be worse for conservatives as a matter of precedent. What they were hoping for was 1) standing, 2) the ninth overturned and 3) the district court overturned and therefore, prop 8 upheld.

    Any rational basis test should be based on available science and our current understanding of reality. This is not the same as a living constitution, but it not originalist either. The core problem is that a rational basis test is not properly enshrined in the constitution, which means that we can't tell how to apply it without contention.

    Posted by: anon | Mar 26, 2013 4:24:29 PM

  17. Andy, will you marry me? Damn... New York Times :" Justices Hint at Fears of Acting Too Quickly on Gay Marriage" They used up all their goodwill on Obamacare.

    Posted by: Reality | Mar 26, 2013 4:32:21 PM

  18. Missing was any suggestion from even the liberal justices that gays and lesbians are entitled to equal protection under the law, and they are entitled to due process. Instead the discussion focused on legal technicalities. Shame on the nine justices...all of them. There is no Thrugood Marshall, no justice who has personal experience with discrimination (Uncle Clarence Thomas apparently included, if you look at his history on the court.)

    Posted by: Jim Kelly-Evans | Mar 26, 2013 4:37:20 PM

  19. reality: i don't think you could even find a goat that would marry you.

    Posted by: candide001 | Mar 26, 2013 4:37:57 PM

  20. I am not a lawyer, so I can't help asking myself this question. If the issue is going to be first and foremost all about "standing", why didn't the court decline to hear the case on the grounds that the plaintiffs had no standing rather than go to the trouble of hearing arguments at all. It seems that they could have saved a lot of time that way.

    Posted by: Jonty Coppersmith | Mar 26, 2013 4:39:33 PM

  21. How much process does a "brilliant Sc" judge need?? People are clearly hurt by discrimination, and no one is hurt when people aren't discriminated against.

    And seems like the president did pretty well coming from pretty crappy heterosexual parents

    Posted by: rick scatorum | Mar 26, 2013 4:43:04 PM

  22. Reminds me of dadt. There's simply no rationale except prejudice

    Posted by: rick scatorum | Mar 26, 2013 4:47:37 PM

  23. Jonty, my guess is that they want to make their decisions, and they want the American public to know why they made those decisions.

    It's all to make good the appearance of fairness and consideration.

    All I care about with this case is that Prop 8 is struck down anyway it can fall, and that same-sex Californian's can get married again soon. The other states will follow in good time.

    It's always been two steps forward, and one step back. The steps are just happening faster now.

    Posted by: Jeff | Mar 26, 2013 4:47:51 PM

  24. @Gigi

    To be clear, Kennedy said he was "struggling" with the question of whether marriage discrimination should be treated as Gender-based discrimination, rather than discrimination against gay persons.

    Posted by: Chip | Mar 26, 2013 5:00:04 PM

  25. @Jonty - it only takes (by custom) the votes of four justices to allow a case to be argued. And there's no guarantee those four (or more) want it heard for the same reasons, or for the same outcome.

    Additionally, some may have wanted it argued precisely so they could rule on whether initiative proponents have standing in federal court.

    Posted by: JamesInCA | Mar 26, 2013 5:03:34 PM

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